People v. Bigge

• Decision Date: 04 April 1939
• Docket Number: No. 84.,84.
• Citation: People v. Bigge, 288 Mich. 417, 285 N.W. 5 (Mich. 1939)
• Parties: PEOPLE v. BIGGE.
• Court: Michigan Supreme Court

288 Mich. 417

285 N.W. 5

PEOPLE

v.BIGGE.

No. 84.

Supreme Court of Michigan.

April 4, 1939.

C. G. Bigge was convicted under an information charging fraudulent conversion of money, and he appeals.

Reversed and remanded for new trial.

McALLISTER, J., dissenting.Appeal from Circuit Court, Manistee County; Homer Ferguson, judge.

Argued before the Entire Bench, except BUTZEL, C. J.

Kim Sigler, of Hastings, and Max C. Hamlin, of Manistee, for appellant.

Wilfred J. Lewis, Pros.Atty., and Howard L. Campbell, Sp. Pros.Atty., both of Manistee, for appellee.

WIEST, Justice.

Under an information charging fraudulent conversion of money defendant was tried, convicted and sentenced.A new trial was denied and defendant, in prosecuting review, presents two questions:

‘1.Was prejudicial error committed by the special prosecuting attorney in his opening statement to the jury?

‘2.Did the special prosecuting attorney commit prejudicial error in stating to the jury in his opening statement that the defendant, C. G. Bigge, had embezzled the sum of $279,365.11, and then proceeding to introduce proofs in support thereof on the theory of showing intent, until limited by the court in the number of said items?’

In his opening statement to the jury of intended proof the special prosecutor said:

‘On the first day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case.They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, ‘What's the use of going over this matter again.Charles is guilty as hell.’

‘Mr. Sigler (attorney for defendant): I object to that as being improper unless Charles G. Bigge was present.

‘Mr. Campbell (special prosecuting attorney): I haven't finished.Charles Bigge could have said right there if it wasn't true.It was his duty to have said so.’

Good practice required counsel to follow his objection with a request for a ruling and an instruction to the jury.This was not done.

At the trial the prosecutor offered testimony that the defendant was present in the room and claimed, under the authority of People v. Todaro, 253 Mich. 367, 235 N.W. 185, the statement and failure of defendant to deny the same was admissible.

In the absence of the jury the jury the court took the testimony and ruled it inadmissible.The error, if any, was therefore, in the opening statement.

The Todaro case was confined to res gestae occurrences and is no authority for admitting the testimony in the instant case.The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt.There can be no such thing as confession of guilt by silence in or out of court.The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant.Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt.He said nothing, and what was said in his presence by another was inadmissible, just as the court later held.

Did the statement of the prosecutor constitute reversible error?

We are urged to notice the guilt of defendant appearing in this record and affirm the conviction under the authority of Comp.Laws 1929, § 17354, which reads: ‘No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmativelyappear that the error complained of has resulted in a miscarriage of justice.’

That statutory provision is not a cure-all for it must serve within constitutional limitations or else be declared void.Minor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which deprive an accused of the right of due process of law cannot be composed thereby to the detriment of an accused.The responsibility of maintaining the right of fair trial and due process of law is placed with the judicial branch and cannot be otherwise by legislative permission.We are not concerned with the guilt or innocence of the accused, for we are not triers of the facts and must apply the law to the case as tried.The statement was inexcusable, wholly without warrant of law, planted irremovable impression and rendered defendant a victim of the error.The prosecutor, by such statement of intended proof of defendant's guilt, brought an effect so probable, so inadmissible and so prejudicial as to constitute irreparable error.The charge in the information involved intent and the prosecutor, under the statute(Comp.Laws 1929, § 17320,Stat.Ann. 28.1050), was at liberty to show like acts tending to disclose that the act charged was with intent on the part of defendant, fraudulently, to convert the property to his own use.

We find no objection preceding the limitation imposed by the court and do find the utmost care taken by the court in limiting consideration by the jury of such other acts.In the maintenance of right of trial by jury and full integrity of its incidents we are constrained by the mentioned error to reverse the conviction and remand the case for a new trial.

BUSHNELL, SHARPE, CHANDLER, and HORTH, JJ., concurred with WIEST, J.

POTTER, Justice (concurring).

Defendant was tried, convicted and sentenced for a criminal offense.In his opening statement to the jury, the special prosecuting attorney said:

‘On the first day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case.They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, ‘What's the use of going over this matter again.Charles is guilty as hell.’

‘Mr. Sigler (attorney for defendant): I object to that as being improper unless Charles G. Bigge was present.

‘Mr. Campbell (special prosecuting attorney): I haven't finished.Charles Bigge could have said right there if it wasn't true.It was his duty to have said so.’

Defendant reviews by appeal in the nature of a writ of error.

1.The right to trial by jury in criminal cases was established at common law.The most pointed objection to the adoption of the Federal Constitution was that it did not guarantee trial by jury.By tacit agreement, it was adopted with the promise that appropriate amendments would be submitted as soon as the government thereunder was organized, and the sixth amendment, U.S.C.A.Const., guaranteed the right of trial by an impartial jury.The Ordinance of 1787 had guaranteed judicial proceedings ‘according to the course of the common law’(article 2) which included the right of trial by jury.The Michigan Constitution of 1835 provided ‘the right of trial by jury shall remain inviolate.’Const.1835, art. 1, § 9.During the period from 1840 to 1850, there was much agitation for a change in legal practice.It was seriously argued that juries should be abolished, that pleadings should be verbal instead of written, that we should have inquisitorial in place of controversial procedure, that we should abolish the common law and adopt the civil law.It was argued that the law governing legal proceedings sprang from the legislation and usages of corrupt monarchies, that it was fit only for slaves, was an heirloom of barbarism, and that something should be done more in the interest of the genius of republicanism and in accord with the enlightened spirit of the age.HouseDoc. No. 23, 1844; Senate Docs.1845–1848.This agitation had its influence, but the Constitution of 1850 provided ‘the right of trial by jury shall remain.’Const.1850, art. 6, § 27.But, in obedience to popular clamor, it was provided the legislature might authorize a trial by a jury of less than twelve men.Const.1850, art. 4, § 46.The Constitution of 1908 provided ‘the right of trial by jury shall remain’(Const.1908, art. 2, § 13), though the legislature was authorized to provide for a jury of less than twelve in courts not of record (Const.1908, art. 2, § 19).In addition to the guarantee of right of trial by jury, the Constitution fixed certain common-law incidents, and, among these, was the right of the defendant to be confronted with the witnesses against him.Const.1908, art. 2, § 19.This court construed the language of the Constitution of 1850 that ‘the right of trial by jury shall remain but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law’(Const.1850, art. 6, § 27), and held that the right which is to remain is the right as it existed before the adoption of the Constitution of 1850,—the right to a trial by jury as it had become known to the previous jurisprudence of the State; that nothing is better settled on the authorities than that the legislature cannot take away a single one of the substantial and beneficial incidents of the right of trial by jury as it existed and was adopted by the Constitution.Swart v. Kimball, 43 Mich. 443, 5 N.W. 635.

The right of confrontation carried with it the right of cross-examination.There never was any practice which deprived parties of the right to cross-examine witnesses.DeWitt v. Prescott, 51...